Who bears responsibility for a code violation?

[GeneDavis]

My tract house has a roof plane coming to a "dead" valley, a situation any of us knows, if we pay attention, required a cricket.  It's in Florida, and the state's code mandates a cricket when the abutting penetration wall length is 30 inches or more.  My condition is 56 inches.

 

The house is a year out of warranty, and builder says he bears no responsibility to fix it.  He repaired a leak in the area when the house was approaching the end of its 2 year warranty.  The leak is back.  The builder says too bad.

 

The county's building department says it is not their responsibility to catch this in plans review.  They say if the plan comes to them, as all plans must do, bearing the seal of the state-licensed pro, the signoff means the design meets code in every respect.

 

So the building department sends me to the firm who designed the house, saying it's their fault.  And they send me to an independent engineer, the guy with the license and stamp, and the designers say it's his job to catch it.

 

The engineer won't return my call, but I just left the message earlier today.  I said nothing about code or a problem in my message, only that I needed some information only he would have, for a plan he reviewed and signed.

 

How would this go in the jurisdictions in which you work?

[Chief16Designer]

if its a leak the roofer it should not be a leak criket or no criket ,  on new construction is 10 years warranty 

[ACADuser]

I agree the roofer should have corrected the plan defect as he has to warranty his work.

 

[tinadelllic]

Hi Gene,

 

I actually know quite a bit about this topic although it does vary some from state to state. First, did you have a signed agreement for the work that was performed on your house with the general contractor who was on the permit for the project? Second, did he use hire a subcontractor for the work on the roof or perform the work himself? 

 

A couple other items,

1) Even if you are beyond the timeframe of the warranty provided that doesn't necessarily mean he's off the hook and its your problem now.

2) What really will need to be determined is if this is a material defect, poor workmanship (bad install), or if there was an outside event that impacted the area which caused the damage.

3) Proving number 2 ^

 

EDIT: As far as the building department goes, to my knowledge most jurisdictions (nationwide) have essentially qualified immunity for the inspectors and plan reviewers. The building department technically isn't there for the benefit or interests of the homeowner, its there to protect the jurisdiction and ensure your project meets the codes they feel would prevent you from negatively impacting public interests.

[Chief16Designer]

 He repaired a leak in the area when the house was approaching the end of its 2 year warranty.  The leak is back. 

 

 

This makes the builder part responsible 

[GeneDavis]

Our contract was for the tract builder, a big national firm building in many states, to build the home.  The roofer (this is a cement tile finish) was a sub.  It is that sub that fixed the first incident of leaking.

 

A rep from that roofing outfit that did the job and the fix came out and inspected, and I pointed out the no-cricket condition, which I had not noted before, never having gone on the roof.  See the pic, the black roof plane is the 2:12 cricket I modeled into place where there is none now.  The roofing rep said that they simply roof what gets built, that to have done a cricket at build-new time would have required the framing sub, ahead of the roof work, to have built the cricket structure.

 

IMHO, the drawings should have called for the cricket, which they did not, and there should have been details to show how to kick the mini-valley's discharge away from the wall at the valley's end.  But nothing was shown on the poor set of prints provided.

 

Ours was the first of 24 houses with this condition in this community, 12 of which are still under warranty.  I am sorely tempted to raise a ruckus with those 12 at the same time I raise a ruckus with the builder.

[Richard_Morrison]

This may qualify as a "construction defect", although it is not clear if is a patent or latent defect, which have different statutes of repose. A construction defect is entirely different from warranty issues, and a contractor may not say, "oh, sorry, the warranty is up. Not my problem." https://www.jimersonfirm.com/blog/2020/06/insurers-statute-repose-limitations-construction-defects/   While the finger might be pointed at different entities, the bottom line is that nothing exempts a contractor (sub or general) for liability from installing work that they know is not to Code. I would certainly make sure to give the pre-suit notice as per the article to protect any rights you have from expiring, but beyond that, you may be into attorney territory. It's also worth a call to your homeowner's insurance company to see if they have any input.

[tinadelllic]

Who Pays When the Design Doesn't Meet Code?.pdfWho Pays If Something's Wrong With The Plans and Specs?.pdfWho Pays for a Sub's Negligence?.pdf

Hi there, Here's a couple articles I had in my files you might find helpful

[mtldesigns]

On 12/14/2021 at 1:02 AM, tinadelllic said:

I had in my files you might find helpful

Thanks Tina...  I found these very helpful.

[BFogarty]

Gene,

 

While my current capacity is filled as a GC/Designer/Code Official, by trade I am a framer.  As a framer, and regardless of plans, I'd never of allowed for that situation to have been created without a cricket, its a ticking time bomb (which you're well aware of now...).  If the GC I was framing for told me to construct it that way, I would've made him sign an affidavit acknowledging his choice of construction, potential risk, and that I would not be responsible for any water related issues.  In my 25 years of framing, I thankfully never came across such a thing.

 

Regarding plan review and periodic inspections during construction-  This is not an item, if not specified on the plan, would stick out to me as an item to note to the contractor.  How often are stair rails/guards not noted on plans (a lot!), but they surely are installed during construction.  The inspection thing could go either way.  I could point out the potential issue and refuse to sign their card until it's corrected....if they disagree, they can appeal my decision, which turns into a drawn out mess for the GC.  Or the inspector could see it and have the mindset of "it's not a safety issue, that's on the GC", and not bring it up.  I would NOT choose the latter.

 

As Tina mentioned (I think), building departments are designed for assigning liability to others throughout the process.  If done correctly, there is someone on the hook for multiple stages of the process, with them not being on the end of any.  Not saying departments cannot be held liable ever, but good luck with that route.

 

My gut says this is on the GC, they allowed the situation to occur, and shame on them for it...

 

Hope you're able to get this resolved.

[GaryOhmer]

Everyone of those houses would already be in the mold and rot stage here in Ketchikan, Alaska - our record rainfall is over 16'

[TxDesign]

Came to this late.  There's people to blame but perhaps not legally.  First point,  the lack of a cricket there isn't a code violation of the International Building Code, as Section 1503.6 Crickets and Saddles requires the installation of a cricket  at  any chimney or penetration greater than 30" in length.  The roof terminates against a wall, not a chimney or penetration.  A cricket would likely help with drainage but it's not required.   However 1503.2 Flashing requires the installation of flashing here, installed in a manner to prevent water infiltration.  If there's no flashing there, that IS a code violation, however if the flashing was installed with adhesive and subsequently came loose, that's not a code violation -- simply a maintenance problem, which is a second point.  Likely, the roofer flashed the joints.

 

Perhaps everything was installed properly but flashing, adhesive, or sealants failed due to common occurence. Adhesive may have delaminated due to heat or movement.  Movement could also be to blame for sealant failure due to movement that exceeds the capability of the sealant.  Poor sealant selection could have led to the leak but it'll be hard to prove it without construction documents showing it.

 

I assume the previous 'fix' performed well for a limited time.  Perhaps it's still performing and the new leak is something else.  Hard to say with certainty.  In any case another fix is needed.  If the previous fix is suspect, then change the  fix  to include a cricket and/or reflashing.  Carlisle Coatings and Waterproofing manufactures a product called CCW-705 -- basically a self-adhering rubber sheet for exterior waterproofing.  You can remove the roof tiles and adjacent wall cladding, install a cricket if you'd like,  then wrap the whole area - roof and walls -with this membrane, perhaps extending 8" or more up the walls and over the sub-fascia, then install the fascia and drip-edge and install more CCW-705 to flash the joint of the drip-edge and roof.

 

The fix can happen sooner and cost less than hiring an attorney and proceeding through the legal system.

[tommy1]

On a personal note, I NEVER let a final plan get to a contractor or homeowner if there is a water trap. I make a roof design change or a cricket where necessary period. I have never missed seeing a water trap yet. Yes, the general contractor or roofing contractor should have caught this...especially the roofing contractor. Poor initial design work from the drafter. 

P.S. In the past, I have had homeowners come to me that fired an Architect for taking too long on a project or not responding to them in a timely manner. When I get the plan, I've found a couple of times that the roof didn't even work as drawn. Amazing.

[M-Reed]

I agree with Tommy. I witness so many designers / Drafters not focusing like they should in order to get the job done fast... 

 

[Greg_NY61]

Steve cricket should have been installed by framers and after sheeting it's roof installation. It looks like everyone missed this detail. Plans don't indicate crickets for reviews ( I never seen one indicating a cricket in 40 years), framers automatically take care of that during framing if they know what they doing. 

Roofers don't built crickets, but they should have brought this to builders attention prior to roof installation.

With that said, it would be cheaper for you to get a someone to install a cricket, flashing and install the roof over it (small area not gonna break you), or you can waste your time running around and see who you can blame, and after getting nowhere, if you still want to find a guilty party, you will have to get an attorney and at this point and time you will end up spending a s^*t load of money in legal fees and there is no guarantee you will recoup anything and most definitely nobody gonna get fix this.

Like I said before, get it fixed, it's not a big deal and you will save yourself a load of headaches.

Good luck Steve!